IN the Supreme Court of the United States ———— RICHARD G

No. 11-557

IN THE Supreme Court of the United States ———— RICHARD G. RENZI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ———— BRIEF OF AMICUS CURIAE THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES IN SUPPORT OF PETITIONER ———— KERRY W. KIRCHER General Counsel Counsel of Record CHRISTINE DAVENPORT Senior Assistant Counsel KATHERINE E. MCCARRON Assistant Counsel WILLIAM PITTARD Assistant Counsel KIRSTEN W. KONAR Assistant Counsel TODD B. TATELMAN Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 [email protected] Counsel for Amicus Curiae the Bipartisan Legal Advisory Group, U.S. House of Representatives December 2, 2011

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...... iii INTEREST OF AMICUS CURIAE ...... 1 SUMMARY STATEMENT ...... 3 INTRODUCTION AND BACKGROUND ...... 4 THE COURT’S SPEECH OR DEBATE JURISPRUDENCE ...... 4 FACTUAL BACKGROUND ...... 10 PROCEDURAL BACKGROUND ...... 12 PANEL RULING ...... 14 ARGUMENT ...... 16 I. REVIEW IS APPROPRIATE HERE BECAUSE THE PANEL’S DECISION CREATES A CIRCUIT SPLIT – EVEN IF UNNECESSARILY – ON THE QUESTION OF WHETHER THE SPEECH OR DEBATE CLAUSE PROTECTS LEGISLATIVE RECORDS ...... 16 II. REVIEW IS APPROPRIATE HERE BECAUSE THE CIRCUIT SPLIT CONCERNS AN IMPORTANT QUESTION OF CONSTITUTIONAL LAW ...... 20 CONCLUSION ...... 22

(i) ii TABLE OF CONTENTS—Continued Page ADDENDUM Addendum A: Order, United States v. Clemens, No. 1:10-cr-00223 (D.D.C. Apr. 27, 2011) ...... 1a Addendum B: Order, United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996) ...... 4a Addendum C: Order, Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) ...... 6a Addendum D: Order, United States v. Moussaoui, No. 01-455-A (E.D. Va. Mar. 2, 2006) ...... 15a Addendum E: Order, United States v. Arthur Andersen, LLP, Crim. No. H-02- 121 (S.D. Tex. May 14, 2002) ...... 20a

iii TABLE OF AUTHORITIES CASES Page Beverly Enters., Inc. v. Trump, 182 F.3d 183 (3d Cir. 1999)...... 3 Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995) ...... 6, 17, 18, 21 Doe v. McMillan, 412 U.S. 306 (1973) .... 5, 8, 9, 20 Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975) ...... 4, 5, 8, 9, 18, 20, 21 Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc) ...... 3 Gravel v. United States, 408 U.S. 606 (1972) ...... 4, 5, 8, 9, 20 Helstoski v. Meanor, 442 U.S. 500 (1979) .... 5 In re Grand Jury Investigation, 587 F.2d 589 (3d Cir. 1978)...... 7 In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) ...... 3, 6 In re Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100 (D.D.C. 2006), rev’d sub nom., United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 552 U.S. 1295 (2008) ...... 3, 6, 7, 17, 19 Kilbourn v. Thompson, 103 U.S. 168 (1880) ...... 5 Light v. United States, 220 U.S. 523 (1911) ...... 10 Miller v. Transam. Press, Inc., 709 F.2d 524 (9th Cir. 1983) ...... 7

iv TABLE OF AUTHORITIES—Continued Page MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856 (D.C. Cir. 1988) ...... 7, 21 Pentagen Techs. Int’l, Ltd. v. Comm. on Appropriations, 20 F. Supp. 2d 41 (D.D.C. 1998), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (per curiam) ...... 7 Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) ...... 7 Tenney v. Brandhove, 341 U.S. 367 (1951) .. 4, 20 United States v. Arthur Andersen, LLP, Crim. No. H-02-121 (S.D. Tex. May 14, 2002) ...... 7 United States v. Brewster, 408 U.S. 501 (1972) ...... 5, 8, 10, 20, 21 United States v. City & Cnty. of S.F., 310 U.S. 16 (1940) ...... 10 United States v. Clemens, No. 1:10-cr- 00223 (D.D.C. Apr. 27, 2011) ...... 7 United States v. Helstoski, 442 U.S. 477 (1979) ...... 5, 8, 9 United States v. Johnson, 383 U.S. 169 (1966) ...... 4, 5, 8, 20 United States v. McDade, 28 F.3d 283 (3d Cir. 1994) ...... 3 United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996)...... 7, 8

v TABLE OF AUTHORITIES—Continued Page United States v. Moussaoui, No. 01-455-A (E.D. Va. Mar. 2, 2006) ...... 7 United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C. 1981) ...... 7 United States v. Renzi, 651 F.3d 1012 (9th Cir. 2011) ...... 2, 3 United States v. Rostenkowski, 59 F.3d 1291 (D.C. Cir. 1995) ...... 16 CONSTITUTIONAL AUTHORITIES U.S. Const. art. I, § 6, cl. 1 ...... 1 U.S. Const. art. IV, § 3, cl. 2 ...... 10

LEGISLATIVE AUTHORITIES Southeast Arizona Land Exchange and Conservation Act of 2005, H.R. 2618, 109th Cong. (1st Sess. 2005) ...... 10 Southeast Arizona Land Exchange and Conservation Act of 2006, H.R. 6373, 109th Cong. (2d Sess. 2006) ...... 10 151 Cong. Rec. E1087 (daily ed. May 25, 2005) ...... 10

OTHER MATERIALS The Federalist No. 51 (James Madison) ...... 1 Conrad Russell, Parliaments and English Politics, 1621-1629 (1979) ...... 4

vi TABLE OF AUTHORITIES—Continued Page Carol Hardy Vincent, Cong. Research Serv., R41509, Land Exchanges: Bureau of Land Management Process and Issues (Nov. 29, 2010) ...... 10 Christopher Thompson, The Reaction of the House of Commons in November and December 1621 to the Confinement of Sir Edwin Sandys, 40 Hist. J. 779 (1997) ...... 4 Daniel Dansie, Comment, The Washington County Growth and Conservation Act of 2006: Evaluating a New Paradigm in Legislated Land Exchanges, 28 J. Land Resources & Envtl. L. 185 (2008) ...... 10, 11 Harold Hulme, The Winning of Freedom of Speech by the House of Commons, 61 Am. Hist. Rev. 825 (1956) ...... 4 John Reeve, The Arguments in King’s Bench in 1629 Concerning the Imprisonment of John Selden and Other Members of the House of Commons, 25 J. Brit. Stud. 264 (1986) ...... 4

1 INTEREST OF AMICUS CURIAE Amicus curiae the Bipartisan Legal Advisory Group of the U.S. House of Representatives – currently composed of the Honorable John A. Boehner, Speaker of the House; the Honorable Eric Cantor, Majority Leader; the Honorable Kevin McCarthy, Majority Whip; the Honorable Nancy Pelosi, Democratic Leader; and the Honorable Steny H. Hoyer, Democratic Whip – presents the House’s institutional position in litigation matters.1 This case concerns the Constitution’s Speech or Debate Clause: “for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. This Clause – the protections of which apply absolutely to all Member activities within the “legislative sphere” – is a fundamental pillar of Congress’s independence. It enables Congress to serve the American people free from interference and intimidation by the Executive and Judicial Branches, and it is critically important, not only to Congress’s relationship with the other branches of the federal government, but also to its ability to perform independently its assigned constitutional role in our system of separated powers. See The Federalist No. 51 (James Madison) (“[T]he great security against a gradual concentration of the several powers in the

1 The Solicitor General and counsel of record for petitioner Richard G. Renzi received notice, 10 days prior to the due date for this brief, of the House’s intention to file this brief. All parties consented to the filing of this brief and letters of consent have been lodged with the Clerk. No counsel for a party authored this brief in whole or in part, and no person or entity other than the House has made a monetary contribution to the preparation and submission of this brief. 2 same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”). The Speech or Debate Clause issues arise here in the context of a criminal proceeding involving Richard Renzi, U.S. Representative for the 1st congressional district of Arizona during the 108th- 110th Congresses (2003-08). Mr. Renzi, who has been indicted by a federal grand jury in Arizona, seeks review of two Speech or Debate rulings by the Ninth Circuit Court of Appeals which resolved those and other issues on an interlocutory appeal by Mr. Renzi from several adverse District Court rulings. See Appendix (“App.”) A to Pet. for a Writ of Cert. (Oct. 31, 2011) (“Renzi Pet.”) (reported at United States v. Renzi, 651 F.3d 1012 (9th Cir. 2011)). The House has no institutional interest in shiel- ding former Congressman Renzi from prosecution – and it does not file this brief for that purpose. The House, however, has a very great interest in ensuring that, in reconciling the Speech or Debate Clause with the Executive Branch’s legitimate interest in investigating and prosecuting legislators who may have engaged in criminal activities, the Court construes the Clause in a manner that protects Congress and its Members in the conduct of their legislative duties, and thereby safeguards the independence of the Legislative Branch which is essential to our system of government. The House’s interest in the Speech or Debate Clause is not new. That interest normally is vindi- cated when the House Office of General Counsel – which is charged with protecting and preserving the House’s institutional interests – litigates Speech or 3 Debate issues on behalf of individual Members, offic- ers, employees or committees. However, the Biparti- san Legal Advisory Group has not hesitated to file as amicus curiae in cases, such as this one, that raise significant Speech or Debate questions where the General Counsel does not represent a party.2

SUMMARY STATEMENT The House agrees with Mr. Renzi that the Court should grant certiorari here. However, it submits this brief to explain why the first of two questions Mr. Renzi presents – “whether the Speech or Debate Clause has a non-disclosure privilege that prevents agents of the Executive from obtaining legislative- act materials from a Member of Congress without consent,” Renzi Pet. at i – is framed too broadly and does not reflect an actual circuit split, and why the Court therefore should grant certiorari on a more narrowly-drawn first question, in particular: Whether the Speech or Debate Clause protects Representatives’ and Senators’ documentary materials and records, insofar as those materials and records reflect Members’ legislative activities, to the same extent that the Clause protects Members against being compelled to testify about those legislative activities.

2 See, e.g., Renzi, 651 F.3d at 1015; In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009); In re Search of Rayburn House Office Bldg., 432 F. Supp. 2d 100, 105 (D.D.C. 2006), rev’d sub nom., United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007), cert. denied, 552 U.S. 1295 (2008); Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 3 (D.C. Cir. 2006) (en banc); Beverly Enters., Inc. v. Trump, 182 F.3d 183, 186 (3d Cir. 1999); United States v. McDade, 28 F.3d 283, 286 (3d Cir. 1994). 4 INTRODUCTION AND BACKGROUND

THE COURT’S SPEECH OR DEBATE JURISPRUDENCE The Speech or Debate Clause is rooted historically in the suppression and intimidation, by criminal prosecution, of Members of Parliament by English monarchs in the 16th and 17th centuries. See United States v. Johnson, 383 U.S. 169, 178 (1966); Tenney v. Brandhove, 341 U.S. 367, 372 (1951).3 As a result of the English experience, “[f]reedom of speech and action in the legislature was taken as a matter of course” by the Founders, and included by them in the Constitution in the form of the Speech or Debate Clause, with little discussion or debate. Tenney, 341 U.S. at 372-73. “The purpose of the Clause is to [e]nsure that the legislative function the Constitution allocates to Congress may be performed independently.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975). Its “‘central role’” is to “‘prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.’” Id. (quoting Gravel v. United States, 408 U.S. 606, 617 (1972)). The Clause thus “reinforc[es] the separation of powers so

3 The historical record confirms the Clause’s roots in the criminal context. See, e.g., Conrad Russell, Parliaments and English Politics, 1621-1629 at 122 (1979); Christopher Thompson, The Reaction of the House of Commons in November and December 1621 to the Confinement of Sir Edwin Sandys, 40 Hist. J. 779, 781-82, 785 (1997); John Reeve, The Arguments in King’s Bench in 1629 Concerning the Imprisonment of John Selden and Other Members of the House of Commons, 25 J. Brit. Stud. 264, 265 (1986); Harold Hulme, The Winning of Freedom of Speech by the House of Commons, 61 Am. Hist. Rev. 825, 836 (1956). 5 deliberately established by the Founders.” Johnson, 383 U.S. at 178; see also United States v. Brewster, 408 U.S. 501, 507 (1972). Because the values the Speech or Debate Clause serves are so “vitally important to our system of government,” the Court has insisted that the Clause “be treated by the courts with the sensitivity that such important values require.” Helstoski v. Meanor, 442 U.S. 500, 506 (1979). Accordingly, the Court has required, “[w]ithout exception . . . [that the Clause be] read . . . broadly to effectuate its purposes.” Eastland, 421 U.S. at 501; see also Doe v. McMillan, 412 U.S. 306, 311 (1973); Gravel, 408 U.S. at 624; Johnson, 383 U.S. at 180; Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). In keeping with this sweeping mandate, and to ensure that the Clause’s underlying purpose is fulfilled, the Court construed the Clause, in a series of decisions spanning a 30-year period from the early 1950s to the late 1970s, to encompass the following enduring features and elements: 1. The Court has held that, when applicable, the Speech or Debate Clause provides to Members three distinct protections: (i) an immunity from prosecutions and lawsuits for all “actions within the ‘legislative sphere,’” McMillan, 412 U.S. at 312; see also Eastland, 421 U.S. at 503; (ii) a non-evidentiary use privilege that bars prosecutors and parties from advancing their cases or claims against Members by “[r]evealing information as to a legislative act,” United States v. Helstoski, 442 U.S. 477, 490 (1979); see also Johnson, 383 U.S. at 173-77; and (iii) a testimonial or discovery privilege against being compelled to testify about legislative matters, see Gravel, 408 U.S. at 615-16.

6 With respect to the testimonial/discovery privilege, the Court has not had occasion to consider whether that privilege extends to documentary materials and records that reflect legislative activities. The lower courts have, however; and, almost without exception, they have concluded that the privilege does apply to such documentary materials and records because (i) “[d]ocument[s] . . . can certainly be as revealing as oral communications,” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995), and (ii) there is no logical reason why a Member should be constitutionally protected against being compelled to testify about his or her legislative activities, but constitutionally defenseless in the face of a demand for documentary materials and records that memorialize, reflect or analyze those very same legislative activities. Id. (“[I]ndications as to what Congress is looking at provide clues as to what Congress is doing, or might be about to do.”). The D.C. Circuit in Rayburn House Office Bldg., 497 F.3d at 655, 660, 662, coined the term “non-disclosure” privilege to make clear that documentary materials and records that reflect legislative activities are protected under the testimonial/discovery component of the Speech or Debate Clause to the same extent as oral questioning. Much of the case law in this area has been devel- oped by federal courts in the District of Columbia, not surprisingly, given that Congress meets in Washing- ton, D.C.; Members perform most of their legislative work there; and, therefore, the vast majority of Congress’s legislative records are in Washington, D.C.4 However, the case law in this area is not

4 See, e.g., In re Grand Jury Subpoenas, 571 F.3d at 1203 (reversing lower court order that declined to quash document 7 limited to the federal courts in the District of Columbia.5

subpoena for Member records directed to Member’s lawyers); Rayburn House Office Bldg., 497 F.3d 654 (execution of search warrant for Member congressional records violated Speech or Debate Clause); MINPECO, S.A. v. Conticommodity Servs., Inc., 844 F.2d 856, 859-61 (D.C. Cir. 1988) (affirming lower court order quashing document subpoena to House subcommittee); Pentagen Techs. Int’l, Ltd. v. Comm. on Appropriations, 20 F. Supp. 2d 41, 45 (D.D.C. 1998) (House committee’s “investigative reports are protected from compulsory disclosure by the Speech or Debate Clause”), aff’d, 194 F.3d 174 (D.C. Cir. 1999) (per curiam); United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246, 248-49 (D.D.C. 1981) (quashing document subpoena for House committee records directed to committee chairman and Clerk of House); Order, United States v. Clemens, No. 1:10-cr-00223 (D.D.C. Apr. 27, 2011) (Addendum (“Add.”) at 1a) (quashing document subpoena to House committee). 5 See, e.g., Miller v. Transam. Press, Inc., 709 F.2d 524, 529-30 (9th Cir. 1983) (committee reports and materials inserted into Congressional Record protected); Order at 1, United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996) (reversing lower court order which had directed House committee to produce to Executive Branch documents lower court had concluded were “protected by the privilege conferred by the Speech or Debate Clause” – “It was error for the district court to require production of the documents . . . .”) (Add. at 5a); Order, Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) (Add. at 6a) (quashing document subpoena directed to Member); Order, United States v. Moussaoui, No. 01- 455-A (E.D. Va. Mar. 2, 2006) (Add. at 15a) (same); Order, United States v. Arthur Andersen, LLP, Crim. No. H-02-121 (S.D. Tex. May 14, 2002) (Add. at 20a) (quashing document subpoena directed to House committee). It is true, as Mr. Renzi points out, Renzi Pet. at 14 n.4, that the Third Circuit once suggested that legislative records might not be protected under the testimonial/discovery component of the Clause in some circumstances. See In re Grand Jury Investigation, 587 F.2d 589, 597 (3d Cir. 1978). However, a 8 The Court has drawn no distinctions among the three protections in terms of effect. Rather, it has held unequivocally that when the Speech or Debate Clause applies, it is “absolute.” Eastland, 421 U.S. at 501, 503, 509-10, 510 n.16; Gravel, 408 U.S. at 623 n.14. 2. The Court has held that the three protections apply to all activities “within the ‘legislative sphere,’” McMillan, 412 U.S. at 312 (quoting Gravel, 408 U.S. at 624-25), which it broadly has defined to encompass all activities that are: “an integral part of the deliberative and commu- nicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Eastland, 421 U.S. at 504 (quoting Gravel, 408 U.S. at 625); see also Gravel, 408 U.S. at 617 (Court has “not taken a literalistic approach in applying the privilege”). 3. The Court has held that, beyond legislative activities themselves, the Clause also protects “‘against inquiry into . . . the motivation for those [legislative] acts.’” Helstoski, 442 U.S. at 489 (quoting Brewster, 408 U.S. at 525); see also Brewster, 408 U.S. at 538 (whether legislative activity improperly motivated “is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.”); Johnson, 383 U.S. at 184-85.

subsequent Third Circuit decision firmly discredited that notion. See Order at 1, McDade, No. 96-1508 (Add. at 4a). 9 4. The Court also has held that the protections of the Clause apply “to [a Member’s] aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.” Gravel, 408 U.S. at 618. The Court has so held because: it is literally impossible, in view of the complexi- ties of the modern legislative process, with Con- gress almost constantly in session and matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so criti- cal to the Members’ performance that they must be treated as the latter’s alter egos . . . . Id. at 616-17; see also Eastland, 421 U.S. at 507 (Senate committee aide, as well as Senators themselves, immune from suit under Speech or Debate Clause). 5. Finally, the Court has held that the protections of the Speech or Debate Clause apply “even though the[] conduct [in question], if performed in other than legislative contexts, would . . . be unconstitutional or otherwise contrary to criminal or civil statutes,” McMillan, 412 U.S. at 312-13 (emphasis added). In so holding, the Court has acknowledged the potential costs associated with this broad constitutional protection. “[W]ithout doubt the exclusion of [legislative act] evidence will make prosecutions more difficult.” Helstoski, 442 U.S. at 488. “[T]he broad protection granted by the Clause creates a potential for abuse.” Eastland, 421 U.S. at 510. Nevertheless, the Court steadfastly and repeatedly has held that the Speech or Debate Clause must be broadly construed and applied because that was “‘the conscious choice of the 10 Framers’ buttressed and justified by history.” Id. (quoting Brewster, 408 U.S. at 516).

FACTUAL BACKGROUND In or about 2006, the Department of Justice (“De- partment”) began investigating then-Congressman Renzi in connection with certain land exchange legislation he had introduced in the House. See Southeast Arizona Land Exchange and Conservation Act of 2005, H.R. 2618, 109th Cong. (1st Sess. 2005); 151 Cong. Rec. E1087, E1093 (daily ed. May 25, 2005); Southeast Arizona Land Exchange and Conservation Act of 2006, H.R. 6373, 109th Cong. (2d Sess. 2006).6 In the course of that investigation, the

6 Congress has plenary power to regulate the distribution and use of federal public land. See U.S. Const. art. IV, § 3, cl. 2. “The power over the public land thus entrusted to Congress is without limitations. ‘And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.’” United States v. City & Cnty. of S.F., 310 U.S. 16, 29-30 (1940) (quoting Light v. United States, 220 U.S. 523, 537 (1911)). One manner in which Congress exercises its Article IV authority is through “land exchanges,” the trading of federally owned lands for lands that are owned by corporations, individuals, or state or local governments. “Throughout the history of the West, the federal government has used land exchanges with states, local governments, and private individuals to address various land management issues.” Daniel Dansie, Comment, The Washing- ton County Growth and Conservation Act of 2006: Evaluating a New Paradigm in Legislated Land Exchanges, 28 J. Land Resources & Envtl. L. 185, 187 (2008) (“Dansie”). Some land exchanges take place through administrative processes administered by certain federal agencies pursuant to authority dele- gated to them by statute, while others take place pursuant to legislation passed directly by Congress. See, e.g., Carol Hardy Vincent, Cong. Research Serv., R41509, Land Exchanges: Bureau of Land Management Process and Issues 1, 7 (Nov. 29, 2010). This latter method, which was pursued in the events 11 Department obtained information that reflected Congressman Renzi’s legislative activities from two principal sources. First, the District Court authorized the Depart- ment, pursuant to a Title III warrant, to tap a Renzi cell phone, as a result of which the Department inter- cepted and recorded numerous phone conversations between Congressman Renzi and others about his legislative activities. See Order at 5, No. 08-cr-00212 (D. Ariz. Feb. 18, 2010) (ECF No. 574). While the District Court – incorrectly in the House’s view – declined to suppress the wiretap evidence on Speech or Debate grounds, id., it later suppressed all of that evidence on the ground that the tap had violated Mr. Renzi’s attorney-client privilege. See Order, No. 08- cr-00212 (D. Ariz. June 4, 2010) (ECF No. 696). Second, information about Congressman Renzi’s legislative activities also was provided to the Depart- ment by then-current and former Renzi aides. For example, the Department questioned several current relevant to this case, has become increasingly important in recent years. Dansie, at 187 (“In recent years, Congress has increasingly addressed land management issues through [direct] legislation.”). In the House, the Committee on Natural Resources – formerly the Committee on Resources – on which then-Congressman Renzi served during the 108th and 109th Congresses (2003-06), has primary jurisdiction over direct land exchange legislation. However, land exchange legislation itself often is prepared or sponsored by a Member of Congress who represents the state or district in which some or all of the land is located. In some ways, the development of direct land exchange legislation resembles the negotiation of a commercial contract, and extensive negotiations between the private landholder and a Member of the House or Senate are a normal and routine part of that process. 12 and former aides about the Congressman’s legislative activities; one or more of those aides provided to the Department copies of legislative documents taken from Congressman Renzi’s congressional office; and one former aide secretly recorded phone conversations with the then-Congressman, including conversations about the Congressman’s legislative activities and motivations for supporting the land exchange legislation. See Renzi Pet. at 7; App. A at 7a n.6. The House is unaware of any record evidence suggesting that any of this information was obtained pursuant to any form of compulsion. Information about Congressman Renzi’s legislative activities later was presented to a grand jury, App. A at 34a-35a, which returned a multi-count indictment against Mr. Renzi and others in February 2008. Subsequently, a second grand jury returned two superseding indictments, the second on September 22, 2009. See App. C. The first 27 counts of each version of the indictment concerned the land exchange legislation and related events. See, e.g., id. at 87a-111a.7

PROCEDURAL BACKGROUND Mr. Renzi filed five pre-trial motions that com- plained of Speech or Debate violations, two of which are pertinent to the Renzi Petition: (1) a motion to dismiss the first 27 counts of the indictment on the ground that those charges are predicated on Congressman Renzi’s legislative activities (or his

7 The Magistrate Judge recently recommended that the first ten of those 27 counts be dismissed. See Report and Recommendation, No. 08-cr-00212 (D. Ariz. Oct. 27, 2011) (ECF No. 913). 13 motivation for those activities), and that, therefore, he is immune from prosecution, see Def. Richard G. Renzi’s Mot. to Dismiss the Indictment for Speech or Debate Clause Violations at 35-38, No. 08-cr-00212 (D. Ariz. Oct. 15, 2008) (ECF No. 86); and (2) a motion for a Kastigar-like hearing, see Def. Richard G. Renzi’s Mot. for a Kastigar Hr’g . . . , No. 08-cr- 00212 (D. Ariz. Oct. 15, 2008) (ECF No. 92). The latter contended that (i) all information concerning Congressman Renzi’s legislative activities that the Department obtained in the course of its investigation was obtained in violation of the Speech or Debate Clause, and (ii) as a result, the Department should be required to demonstrate that its case against Mr. Renzi was based on evidence independent of the evidence it obtained allegedly in violation of the Clause. The District Court denied both motions. See App. B at 63a-69a (denying motion to dismiss); App. E at 211a-221a (denying motion for Kastigar-like hearing). On appeal, the Panel affirmed both rulings. See App. A at 11a-27a (affirming Order denying motion to dismiss); id. at 39a-54a (affirming Order denying motion for Kastigar-like hearing).8

8 Mr. Renzi also moved (i) to dismiss the indictment on the ground that legislative-act evidence permeated the Depart- ment’s grand jury presentation, see Def. Richard G. Renzi’s Mot. to Dismiss the Superseding Indictment for Speech or Debate Clause Violations in the Grand Jury Test., No. 08-cr-00212 (D. Ariz. Apr. 17, 2009) (ECF No. 327); (ii) to suppress the evidence the Department obtained from Congressman Renzi’s aides, see Def. Richard G. Renzi’s Mot. to Suppress Interviews, Consen- sually Recorded Phone Calls, and Cellular Phone Records for Speech or Debate Clause Violations, No. 08-cr-00212 (D. Ariz. Oct. 15, 2008) (ECF No. 90); and (iii) to suppress information the Department obtained as a result of the wiretap, see Def. Richard G. Renzi’s Mot. to Suppress the Title III Wiretap and Search Warrant for Speech or Debate Clause Violations, No. 08- 14 PANEL RULING Section III.C of the Panel Opinion, App. A at 39a- 54a, “consider[ed] Renzi’s claim that the district court erred by refusing to hold a Kastigar-like hearing to determine whether the Government used evidence protected by the Speech or Debate Clause to obtain non-privileged evidence and whether the Government can prove its case with evidence derived from legitimate independent sources.” Id. at 39a. In affirming the District Court, the Panel affirmatively and aggressively reached out to create a conflict with the D.C. Circuit’s Rayburn decision, and, in particular, with the latter’s conclusion that the Clause includes a “non-disclosure” privilege (by which the D.C. Circuit meant that the Clause protects documentary materials and records that reflect legislative activities). See App. A at 43a (“We disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”); id. at 54a (“[T]he Clause cannot incorpo- cr-00212 (D. Ariz. Oct. 15, 2008) (ECF No. 89). (The search warrant referenced in the third of these motions was executed on a private insurance office in which Mr. Renzi had a personal interest and, therefore, is constitutionally dissimilar from the search warrant that gave rise to the Rayburn case which was executed on Congressman William Jefferson’s congressional office. See infra at 17.) The District Court also denied all of these motions. See App. B at 70a-77a (denying motion to dismiss); Order, No. 08-cr- 00212 (D. Ariz. Feb. 18, 2010) (ECF No. 574) (denying motions to suppress). On appeal, the Panel affirmed the denial of the motion to dismiss, App. A at 27a-39a, but declined to consider the Order denying the two motions to suppress. Id. at 10a (“We lack jurisdiction under the collateral order doctrine to consider Renzi’s suppression claim and thus dismiss that part of his appeal.”). Neither of these Panel rulings forms a basis for the Renzi Petition. 15 rate the [non-disclosure] privilege Rayburn contends. . . . We decline to adopt the D.C. Circuit’s Rayburn formulation . . . .”).9 That conflict was unnecessary for two reasons. 1. The Panel could have avoided quarreling with Rayburn had it first considered whether the manner in which the Department obtained the legislative information from the Renzi aides violated the Congressman’s Speech or Debate rights, and had it resolved that issue in favor of the Department. As noted above, Mr. Renzi’s motion for a Kastigar- like hearing was predicated on the assumption that the Department obtained information about his legislative activities in violation of the testimonial/discovery/non-disclosure component of the Speech or Debate Clause. Because the wiretap evidence had been suppressed on non-Speech or Debate grounds by the time the case reached the Ninth Circuit, and the Department had not appealed that ruling, see supra at 11; App. A at 7a n.6, the Panel necessarily predicated its resolution of the Kastigar aspect of Mr. Renzi’s appeal only on the legislative information the Department obtained from the Renzi aides (the interviews, the aide-recorded phone conversations, and the congressional documents). This information, at least on the existing record, appears to have been provided absent any compulsion. Accordingly, the Panel could have determined whether the Department’s obtaining of legislative

9 The Panel allowed for one possible narrow exception to its legislative-records-are-not-protected rule: they may be protected, the Panel said, “when the underlying action is itself [protected].” App. A at 45a; see also Renzi Pet. at 15-16. 16 information from the aides in that manner violated Mr. Renzi’s Speech or Debate rights. Had the Panel considered that question and had it determined that Mr. Renzi’s rights had not been violated, that would have resolved the Kastigar aspect of Mr. Renzi’s appeal, and the Panel would have had no need to consider Rayburn’s non-disclosure ruling. 2. The Panel also could have considered whether a Kastigar-like hearing is ever an available remedy in the Speech or Debate context (even assuming that (i) legislative records are Speech or Debate protected, and (ii) legislative information was obtained by the Department in violation of Mr. Renzi’s Speech or Debate rights). Had the Panel considered that question and had it ruled in favor of the Department, that determination would have been sufficient to resolve the Kastigar aspect of Mr. Renzi’s appeal; would have been consistent with other appellate jurisprudence, see, e.g., United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C. Cir. 1995); and would have spared the Panel the need to consider Rayburn’s non-disclosure ruling. ARGUMENT I. REVIEW IS APPROPRIATE HERE BECAUSE THE PANEL’S DECISION CREATES A CIRCUIT SPLIT – EVEN IF UNNECESSARILY – ON THE QUESTION OF WHETHER THE SPEECH OR DEBATE CLAUSE PROTECTS LEGISLATIVE RECORDS. While a conflict with the D.C. Circuit’s Rayburn decision was unnecessary, it nevertheless now exists and the Court should resolve it. However, the question Mr. Renzi asks the Court to resolve – “[w]hether the Speech or Debate Clause has a non-disclosure 17 privilege that prevents agents of the Executive from obtaining legislative-act materials from a Member of Congress without consent,” Renzi Pet. at i – does not reflect the actual conflict between the Panel’s Opinion and Rayburn. Rayburn concerned the FBI’s search, pursuant to a judicially authorized warrant, of Congressman William Jefferson’s congressional office in the spring of 2006, and its seizure of a voluminous quantity of the Congressman’s congressional records – including thousands of pages of legislative records which the Congressman had no opportunity to review for privilege before they were seized. See In re Search of Rayburn House Office Bldg., 432 F. Supp. 2d at 106. In the context of a Rule 41(g) motion for the return of his records, the Congressman challenged on Speech or Debate grounds the constitutionality of the search under the testimonial/discovery component of the Clause. The District Court held that the search, which it had authorized, did not violate the Clause. Id. at 116. The D.C. Circuit, in reversing, held “that the compelled disclosure of privileged material [i.e., papers and electronic records] to the Executive during execution of the search warrant . . . violated the Speech or Debate Clause. . . .” Rayburn, 497 F.3d at 656; see also id. at 663; id. at 660 (citing Brown & Williamson Tobacco Corp., 62 F.3d at 416, which, in turn, relied on Eastland and MINPECO). In the course of its Rayburn Opinion, the D.C. Circuit used the term “non-disclosure” four times: Our precedent establishes that the testimonial privilege under the Clause extends to non- disclosure of written legislative materials. 497 F.3d at 655 (emphasis added); 18 Although in Gravel the [Supreme] Court held that the Clause embraces a testimonial privilege, [408 U.S.] at 616, to date the [Supreme] Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege. However, this court has. . . . [T]his court held in Brown & Williamson, 62 F.3d at 415, that the Clause includes a non-disclosure privilege, id. at 420. Noting that the purpose of the Speech or Debate Clause is “‘to insure that the legislative function the Constitution allocates to Congress may be performed independently’ . . . ,” id. at 415 (quoting Eastland, 421 U.S. at 502), the [Brown & Williamson] court rejected the view that the testimonial immunity of the Speech or Debate Clause applies only when Members or their aides are personally questioned [because] “[d]ocument[s] . . . can certainly be as revealing as oral communications . . . . [and] indications as to what Congress is looking at provides clues as to what Congress is doing, or might be about to do . . . .” id. at 659-60; If the testimonial privilege under the Clause is absolute and there is no distinction between oral and written materials within the legislative sphere, then the non-disclosure privilege for written materials described in Brown & Williamson, 62 F.3d at 421, is also absolute, and thus admits of no balancing . . . . id. at 662 (emphasis added). It is clear, in each instance, that the D.C. Circuit, in holding that the Speech or Debate Clause includes a “non-disclosure” privilege, meant that documentary 19 materials and records that reflect legislative activities are protected under the testimonial/discovery component of the Speech or Debate Clause to the same extent as oral questioning. Rayburn did not hold, or even suggest, that “the Clause’s shield protects against any Executive Branch exposure to records of legislative acts,” as concurring Judge Henderson seemed to think, 497 F.3d at 671-72, and as the Ninth Circuit Panel also suggested at one point. See App. A at 39a (suggesting that Rayburn had held that Clause “precludes the Government from [ever] reviewing documentary evidence referenc- ing ‘legislative acts’”). Accordingly, there is a split between Section III.C. of the Panel Opinion on the one hand, and Rayburn (and virtually every other Court that has considered the issue, see supra at 6 n.4, 7 n.5) on the other hand, on the question of whether the Speech or Debate Clause protects documentary materials and records that reflect a Member’s legislative activities. That is a direct, fundamental, and important conflict, and one that is appropriate for the Court to consider and resolve. However, there is no circuit split, as Mr. Renzi would have it, on the question of whether the Speech or Debate Clause is violated when a Member’s aides, absent any legal compulsion, disclose to the Execu- tive Branch information about the Member’s legislative activities without the Member’s permission. See Renzi Pet. at i, 13-14. There is no circuit split on that issue because no court has ruled on that issue – not even the Panel which could have, but did not. See supra at 14-16. Accordingly, it would be premature for the Court to consider this issue at this time 20 (although it may be appropriate for the Ninth Circuit to consider the issue in the event of a remand).

II. REVIEW IS APPROPRIATE HERE BECAUSE THE CIRCUIT SPLIT CONCERNS AN IMPORTANT QUESTION OF CONSTITUTIONAL LAW. The application of the Speech or Debate Clause to legislative records is a matter of great importance to the House. The legislative work of the House (and the Senate) self-evidently is a document intensive process, with oceans of written legislative work product – including, but not limited to, drafts of legislation, reports, and floor statements; analyses of legislative proposals in the form of emails and memo- randa; correspondence concerning legislative and oversight matters; and materials gathered in response to congressional subpoenas – being gener- ated and collected every day. While legislative work may have been limited to floor speeches and votes in 17th century England when the Speech or Debate Clause’s forbearer in the English Bill of Rights was promulgated, see Tenney, 341 U.S. at 372, that long since has ceased to be the case. And the Court has mandated that the Clause be construed accordingly. See, e.g., Brewster, 408 U.S. at 525 (“the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process”); Eastland, 421 U.S. at 501 (Clause must be “read . . . broadly to effectuate its purposes”); McMillan, 412 U.S. at 311 (same); Gravel, 408 U.S. at 624 (same); Johnson, 383 U.S. at 180 (same). That is why virtually every lower court that has considered the issue has concluded that Members may not be “questioned” by being compelled to produce written materials that reflect their legis- 21 lative activities any more than they may be “questioned” by being compelled to testify about their legislative activities. See supra at 6 n.4, 7 n.5. After all, the Clause exists to safeguard Congress’s institutional role in our federal government, Brewster, 408 U.S. at 507, and whenever “power is . . . brought to bear on Members of Congress” by another branch of the government, legislative independence is “imperiled.” Eastland, 421 U.S. at 503. That is just as true when a Member is compelled to disclose legislative documents – at the behest of the Executive Branch or otherwise – as it is when a Member is compelled to testify about legislative matters. As Judge Silberman explained in Brown & Williamson, 62 F.3d at 420, “[d]ocument[s] . . . can certainly be as revealing as oral communications,” and “indications as to what Congress is looking at provides clues as to what Congress is doing, or might be about to do. . . . ” The Panel Opinion completely disregards this important consideration. In doing so, it creates a substantially heightened risk that Members who represent congressional districts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (currently 84 Members, nearly 20 percent of the membership of the House) will be compelled to release sensitive legislative records in response to subpoenas that may be issued by private parties as well as by the Executive Branch. It is difficult to imagine a construction of the Speech or Debate Clause that would chill, disrupt and burden Congress’s legislative, oversight and investigative functions to a greater extent. See MINPECO, 844 F.2d at 859 (“Discovery procedures can prove just as intrusive [as lawsuits against Members].”). 22 For this additional reason, certiorari is appropriate here on the question of whether the Speech or Debate Clause protects documentary materials and records, insofar as those materials and records reflect Members’ legislative activities, to the same extent that the Clause protects Members against being compelled to testify about those legislative activities.

CONCLUSION The House respectfully urges the Court to grant Mr. Renzi’s Petition in accordance with the foregoing. Respectfully submitted,

KERRY W. KIRCHER General Counsel Counsel of Record CHRISTINE DAVENPORT Senior Assistant Counsel KATHERINE E. MCCARRON Assistant Counsel WILLIAM PITTARD Assistant Counsel KIRSTEN W. KONAR Assistant Counsel TODD B. TATELMAN Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 [email protected] Counsel for Amicus Curiae the Bipartisan Legal Advisory Group, U.S. House of Representatives December 2, 2011

ADDENDUM ADDENDUM TABLE OF CONTENTS Page Addendum A: Order, United States v. Clemens, No. 1:10-cr-00223 (D.D.C. Apr. 27, 2011) ...... 1a Addendum B: Order, United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996) ...... 4a Addendum C: Order, Stupak v. Hoffman-La Roche, Inc., No. 8:05-cv-926-T-30TBM (M.D. Fla. Apr. 28, 2006) ...... 6a Addendum D: Order, United States v. Moussaoui, No. 01-455-A (E.D. Va. Mar. 2, 2006) ...... 15a Addendum E: Order, United States v. Arthur Andersen, LLP, Crim. No. H-02- 121 (S.D. Tex. May 14, 2002) ...... 20a 1a ADDENDUM A UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [Filed April 27, 2011] ———— Criminal Action No. 10-223 (RBW) ———— UNITED STATES OF AMERICA, v. WILLIAM R. CLEMENS, Defendant. ———— ORDER ———— In accordance with the oral rulings issued by the Court at the conclusion of the motions hearing held on April 21, 2011, it is ORDERED that the defendant's motion to dismiss the Indictment is DENIED without prejudice.1 It is further ORDERED that the House Committee on Oversight and Government Reform's motion to quash

1 The Court is denying the defendant’s motion without prejudice based on the defendant’s representation at the motions hearing that the parties are attempting to reach a mutual agreement regarding the specificity of the allegations that are set forth in the Indictment. As the Court noted at the hearing, the defendant can reinstate his motion to dismiss if such an agreement cannot be reached by the parties. 2a the subpoena duces tecum issued to it by the defendant on February 10, 2011, is GRANTED. It is further ORDERED that the subpoena duces tecum issued by the defendant to the House Committee on Oversight and Government Reform on February 10, 2011, is QUASHED. It is further ORDERED that on or before April 29, 2011, DLA Piper LLP shall produce to the Court for in camera inspection all documents responsive to the subpoena duces tecum that involved an interview by DLA Piper of either Brian McNamee or Kirk Radomski while in the presence of government attorneys or investigators.2 It is further

2 Upon further reflection, the Court finds it necessary to clarify the scope of its in camera review. The first step in the Court’s review will be to determine whether the documents at issue constitute “opinion work product” or “fact work product.” If the Court determines that the documents fall within the category of “opinion work product,” then the Court will not order DLA Piper to produce these documents to the defendant. On the other hand, if the Court concludes that the documents, or portions thereof, constitute “fact work product” because they contain substantially verbatim statements of Mr. McNamee or Mr. Radomski, then the Court will assess whether (1) the statements are inconsistent with the statements made by these potential witnesses in interviews conducted by the government prior to their interviews with DLA Piper, or (2) Mr. McNamee’s statements are consistent with the defendant’s theory that Mr. McNamee has progressively embellished the facts that form the basis of the offenses charged in the Indictment. If the Court concludes that the documents do fall within either of these two categories, then the Court will order DLA Piper to produce those documents to the defendant immediately. Should the Court conclude that the documents do not fall into either of these categories, then the Court will maintain possession of the documents and reassess at trial whether the documents, or 3a ORDERED that on or before April 29, 2011, the government shall provide the Court with a copy of all documentation memorializing interviews conducted by the government of Mr. McNamee and Mr. Radomski prior to their first interviews with DLA Piper on July 9, 2007, and June 7, 2007, respectively. SO ORDERED this 27th day of April, 2011.

/s/ Reggie B. Walton Reggie B. Walton United States District Judge

portions thereof, should be produced for the purpose of impeach- ment or for some other legitimate purpose. 4a ADDENDUM B UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ———— No. 96-1508 ———— UNITED STATES OF AMERICA, Appellee v. JOSEPH M. MCDADE, Defendant CUSTODIAN OF RECORDS, COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT, UNITED STATES HOUSE OF REPRESENTATIVES, Appellant ———— ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DIRECTING THE PRODUCTION OF RECORDS PURSUANT TO FED.R.CRIM.P. 17(c), AT CRIMINAL NO. 92-249 ———— ARGUED: July 12, 1996 BEFORE: Becker, Stapleton and Greenberg, Circuit Judges. ———— ORDER ———— It appearing to the Court that: 5a (1). The district court has ruled that the documents at issue are protected by, the privilege conferred by the Speech or Debate Clause, and that ruling has not been challenged before us; (2). With this determination made, our decision in In re: Grand Jury Proceedings, 587 F.2d 589 (3d. Cir. 1977) (“Eilberg”) neither required nor authorized disclosure to the government; (3). It was error for the district court to require production of the documents at issue to the government at the time of the district court’s order; It is hereby ORDERED that the portions of the district court’s order of June 5, 1996 appealed from are VACATED.∗

BY THE COURT

/s/ Edward R. Becker Circuit Judge

DATED: July 12, 1996

∗ If in the course of future proceedings, the district court determines that a legitimate issue exists as to whether there has been a valid waiver of the Committee’s privilege, nothing here said is intended to preclude the district court from ordering the documents at issue produced for its inspection in camera in connection with the resolution of that issue. 6a ADDENDUM C UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ———— Case No. 8:04-md-2523-T-30TBM MDL 1626 - ALL CASES ———— IN RE: ACCUTANE PRODUCTS LIABILITY LITIGATION, ———— Case No. 8:05-cv-926-T-30TBM ————

1 LAURIE A. STUPAK, Plaintiff, v. HOFFMANN-LA ROCHE, INC., et al., Defendants. ———— ORDER THIS MATTER is before the court on the following motions: (1) U.S. Defendants’ Motion to Compel Discovery from Plaintiff Laurie Stupak (Doc. 7) and Plaintiff’s response (Doc. 12); and (2) U.S. Defendants’ Motion to Compel Discovery from Bartholomew Stupak, Sr. (Doc. 8), Supplemental Brief in Support (Doc. 21), and

1 Plaintiff, Laurie A. Stupak, is the mother of Bartholomew Stupak, Jr., the decedent, in this wrongful action. Her husband is Bartholomew Stupak Sr., a United States Congressman representing the 1st district of Michigan. 7a non-party’s Bartholomew Stupak’s opposition (Doc. 23); (3) U.S. Defendants’ Expedited Motion to Take Three (3) Additional Fact Depositions (Doc. 28). A hearing on these and other matters was conducted on April 20, 2006. By their first motion (Doc. 7), the U.S. Defendants seek an Order (1) requiring Plaintiff to comply with the Case Management Order (hereinafter “CMO”) and explain her failure to produce documents and other requested items in a timely manner, (2) requiring Plaintiff to supplement her written discovery responses and to produce all documents in response to the U.S. Defendants’ outstanding requests within ten days, (3) requiring Plaintiff’s counsel to certify the accuracy and completeness of Plaintiff’s supplemental discovery responses, (4) permitting Defendants to reopen up to three of the depositions already taken, at Plaintiff’s expense, to inquire about documents and items that should have been produced prior to the initial depositions, and (5) requiring Plaintiff to pay the attorney’s fees associated with the instant motion. In support of these requests, Defendants allege that testimony from certain depositions has revealed that Plaintiff has not fully complied with discovery requests with respect to producing all of the decedent’s handwritten notes, all photographs of the decedent, and all videotapes on which the decedent appears.2‘ At the

2 In her response, Plaintiff urges the court to deny Defendants’ motion, asserting that she has supplemented her written responses and document production, the Federal Rules of Civil Procedure do not require her attorney to certify the 8a hearing, counsel for the U.S. Defendants indicated that the disputed issues had been narrowed to the failure of the Plaintiff to produce certain notes found by the police on a table at the scene where the Plain- tiff’s son was found deceased, computer documents, and a school deficiency report purportedly issued to the Plaintiff’s son. As for the remaining disputed items, Plaintiff protests that she cannot produce what she does not have. Thus, she is unaware of any notes on a table or that such notes may already been produced, the family no longer has possession of any of the computers it had at the time of her son’s death, and she is unaware of any grade deficiency notice from her son’s teacher. Upon consideration, the U.S. Defendants’ Motion to Compel Discovery from Plaintiff Laurie Stupak (Doc. 7) is GRANTED in part. To the extent that Plaintiff may discover such items, she remains under a continuing duty to promptly them. Except as noted immediately below regarding depositions, the motion is denied in all other respects.3

completeness or accuracy of her responses, her discovery responses have not been untimely and Defendants have not been prejudiced by the timing of her supplemental responses, there is no need to re-depose any witnesses, and there is no basis to award attorney’s fees on Defendants’ instant motion. Plaintiff also explains her alleged untimely production of certain photographs and handwritten notes from of her son and she denies that she has the particular notes that Defendants seek. As for the videotapes, Plaintiff indicates that her prior counsel informed her that all videotapes had been provided to the Defendants. Plaintiff certifies her responses by way of Affidavit. (Doc. 12, Ex. E). 3 The court has admonished Plaintiff’s counsel to familiarize himself with the Court’s procedural orders in the MDL 1626, 9a By the U.S. Defendants’ Expedited Motion to Take Three (3) Additional Fact Depositions (Doc. 28), the Defendants seek permission of the court to exceed the fifteen deposition limit established by the court’s CMO. More particularly, the Defendants seek permission to depose (1) Amber Twork, allegedly a close friend of the decedent’s, (2) Anne Barley, another close friend of the decedent recently discovered, and (3) Connie Swander, a member of the Michigan State Police crime laboratory. Plaintiff opposes the motion. Upon consideration, the motion (Doc. 28) is GRANTED in part. The U.S. Defendants may depose Anne Barley and Connie Swander. Neither of the two additional depositions shall exceed three (3) hours in total length, including a reasonable time for questions by Plaintiff’s counsel. In all other respects, the motion (Doc. 28) is denied. Regarding, the U.S. Defendants’ Motion to Compel Discovery from Bartholomew Stupak, Sr., (Doc. 8) as supplemented (Doc. 21), Defendants seek supplemental discovery from Plaintiffs husband, Congressman Bartholomew Stupak Sr. Defendants argue that he has improperly limited his testimony and document production based on an expansive and incorrect assertion of congressional privilege. By their supplement, Defendants indicate that the issues have been narrowed somewhat,4 however, they still

Case No. 8:04-MD-2523-T-30TBM, in particular the operative Case Management Order (Doc. 190). 4 The Defendants complain that Representative Stupak improperly invoked the privilege in five areas: conversations he had and documents he provided to his wife and her attorneys; conversations he had and documents he provided to expert witnesses in his wife’s case; conversations he had and documents he provided to other Accutane plaintiffs and their attorneys; his efforts to influence federal agencies with respect 10a maintain that Representative Stupak: (1) has waived any claim of privilege by failing to assert it in a proper and timely manner; (2) cannot preserve the privilege while acting as a private plaintiff; (3) has disseminated the material to third parties in such a fashion that the material so disseminated is discoverable; and (4) has improperly asserted the privilege when declining to answer questions concerning matters about which he may testify at the trial. Defendants seek an Order directing Represen- tative Stupak to produce all of the documents related to Accutane he has accumulated as a representative, or alternatively, to produce all of the documents related to Accutane he has disseminated to third persons outside of Congress, or at a minimum an in camera review of such matters. Defendants also request that the court bar Representative Stupak from testifying at trial on any matters that he claims are subject to the congressional privilege and about which he has refused to speak at depositions. At arguments, counsel for Representative Stupak responded that the documents the congressman and staff have accumulated related to Accutane have been carefully reviewed and Defendants have now to their oversight of Accutane; and matters about which he may be called to testify at trial. From the pleadings and arguments, it appears that Representative Stupak subsequently produced documents relating to his public statements on Accutane; his communications with plaintiffs, their lawyers, and their experts; and his attempts to lobby agencies; and he appeared for a second half-day of deposition on March 14, 2006. (Doc. 21 at 3- 4). Thus, he claims he has produced 520 pages of his congressional records, as well as a comprehensive written description of what he withheld. (Doc. 23 at 6-7). Representative Stupak’s counsel claims that upon his own independent review of the documents, all non-privileged documents have been produced. 11a been forwarded copies of almost all of the non- privileged Accutane-related documents requested.5 Counsel opposes any effort to label Representative Stupak as a de facto Plaintiff in this cause and asserts that, even if he was such, he would maintain his congressional privilege. Fundamentally, counsel urges that the Defendants misunderstand the privilege afforded by the Speech and Debate Clause of the U.S. Constitution. He urges further that the privilege cannot be waived absent extraordinary circumstances and that it is impermissible in these circumstances to require either an in camera review or for the congressman to provide a privilege log. The congressional privilege stems from the protections afforded members of Congress by the Speech and Debate Clause.6 These protections apply to all activities “within the ‘legislative sphere,’” Gravel v. U.S., 408 U.S. 606, 624-25 (1972), and are absolute. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 501 (1975). The privilege permits Congress to, among other things, “conduct investigations and obtain information without interference from the courts . . .” Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 416 (D.C. Cir. 1995); see also

5 According to counsel, a vast majority of the documents that were shared with third persons have been produced. For example, all but three documents shared with attorneys have been produced. For the three, there is a claim that those were shared for legislative purposes and maintain the privilege. On the other hand, there are several banker’s boxes of material collected by the congressman which have not been shared and for which he asserts the privilege regardless of their source. 6 The Speech or Debate Clause states in pertinent part, “. . . for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. 12a Eastland, 421 U.S. at 504. To the extent that it is possible for the Speech or Debate privilege to be waived, it “can be found only after explicit and unequivocal renunciation of the protection.” U.S. v. Helstoski, 442 U.S. 477, 490-91 (1979). Initially, I find that Representative Stupak has not waived the privileges afforded him under the Speech or Debate Clause and clearly there has been no “explicit and unequivocal renunciation of this protection” by the representative. Although Defendants aptly urge that the privilege asserted in this case is done so broadly, it is not demonstrated on this motion that the expansive claim of privilege has not been corrected by the involvement of House of Representative counsel and through the production of documents determined appropriate for production. At this point, the court accepts counsel’s representation that a thorough and careful review of the material collected by the representative and staff has been made and no further production is required. The representative’s assertion of the privilege at depositions to shield his disclosure of information on which he relies for his potential testimony at trial is more troubling. On the one hand, I agree with the Defendants that the representative may not use the privilege as both a sword and a shield when he assumes the role of an interested witness in the wrongful death action of his son. There is nothing “legislative” in that role. However, the Defendants cite no authority permitting the court to strike such witness’s trial testimony at this stage of the proceedings solely because he has asserted the privilege. I agree with the representative’s counsel that this is a trial matter that is more appropriately left to the determination of the trial judge. I would 13a caution the representative, however, that the discovery period in this litigation is limited. His failure to give a full accounting of the matters he may testify to at trial and the basis for such testimony within the discovery period will likely have serious adverse consequences on the scope of his testimony at trial. He has been fairly warned. Lastly, regarding an in camera review or the requirement of a privilege log, absent clear authority for compelling the same, I agree with Representative Stupak’s counsel that requiring the holders of the privilege to submit to such is contrary to the purpose of the Speech or Debate Clause. See Helstoski, 442 U.S. at 491 (providing that purpose is to preserve constitutional structure of separate, independent branches of government and noting that any lesser standard would risk intrusion by the Executive and Judiciary into the sphere of protected legislative activities); Eastland, 421 U.S. at 503 (reaffirming that once it is determined that a congressman was acting within the “legitimate legislative sphere,” the Speech or Debate Clause is an absolute bar to interference).7 Accordingly, the U.S. Defendants’ Motion to Compel Discovery from Bartholomew Stupak, Sr., (Doc. 8) as supplemented (Doc. 21) is DENIED.

7 As counsel notes, Mr. Stupak has provided a general, written description of broad categories of documents responsive to Defendants’ October 20, 2005, subpoena duces tecum which were withheld on Speech or Debate grounds. Counsel argues that these descriptions are adequate to enable Defendants to understand what was withheld and why. (Doc. 23 at n. 10). At this point, I tend to agree. 14a Done and Ordered in Tampa, Florida, this 28th day of April 2006. /s/ THOMAS B. McCOUN III THOMAS B. McCOUN III UNITED STATES MAGISTRATE JUDGE

Copies furnished to: United States District Judge Counsel of Record 15a ADDENDUM D IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION ———— Criminal No. 01-455-A ———— UNITED STATES OF AMERICA, Plaintiff, v. ZACARIAS MOUSSAOUI, Defendant. ———— ORDER ———— Before the Court is the Motion of U.S. Representative Curt Weldon to Quash Subpoena (Docket #1584), in which Representative Weldon objects to being called to give testimony about or provide documents collected during his investigation of the government’s “Able Danger” program. The government has filed a related Motion In Limine to Exclude the Testimony of Proposed Defense Witnesses Related to the Able Danger Program (Docket #1619) (“Motion to Exclude”), in which it seeks a ruling preventing the defense from calling three witnesses with personal knowledge of the “Able Danger” program.1

1 The government’s Motion to Exclude was filed under seal, because it reveals the names of potential defense witnesses. Because the Motion to Quash was not filed under seal, without 16a On January 23, 2006, a trial subpoena was issued to Representative Weldon commanding him to appear at this court on March 6, and to bring any documents in his possession referring or relating to the “Able Danger” program, or to any of the September 11 hijackers. Representative Weldon objects to the subpoena on the grounds that as a member of Congress, his privilege under the Speech and Debate Clause of the United States Constitution immunizes him from being compelled to give testimony or provide documents in this case.2 Representative Weldon also states that he is no longer in possession of the chart that the defense seeks.3 The defendant objects to the Motion to Quash arguing that by discussing his knowledge of the “Able Danger” program in public, non-legislative fora such as The Oprah Winfrey Show, Representative Weldon has waived any privilege he may have had. The Speech and Debate Clause provides a very strong protection to members of Congress against being questioned about activities that are “within the sphere of legitimate legislative activity.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 501 (1975). If

objection from the defense, it is clearly a matter of public knowledge that the defense may wish to call witnesses knowledgeable about the “Able Danger” program. Therefore, the Court will address both motions in this unsealed Order. 2 The Speech and Debate Clause provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6, c1.1. 3 Although the subpoena is more broadly written, the defense has expressed a particular interest in a chart referenced by Representative Weldon in his book, Countdown to Terror, and described in various newspaper articles. 17a the court finds that the activities at issue are within the sphere of legitimate legislative activity, then “the prohibitions of the Speech or Debate Clause are absolute” and the representative may not be questioned about them, other than by the Congress itself. Id. Legitimate legislative activity has been defined by the Supreme Court as matters that are “an integral part of the deliberative and communi- cative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972). Much, if not all, of the information responsive to the subpoena can be expected to have come from Representative Weldon’s legitimate legislative activity of investigating a project that is clearly a proper subject for Congressional legislation. It is also clear that Representative Weldon’s public discussion of his “Able Danger” investigation is not sufficient to waive the privilege of the Speech and Debate Clause in the context of this subpoena. The Supreme Court has held that any such waiver “can be found only after explicit and unequivocal renunciation of the protection.” United States v. Helstoski, 442 U.S. 477, 491 (1979). Representative Weldon’s public statements about the “Able Danger” program never referenced, let alone renounced, the Representative’s privilege under the Speech and Debate Clause. Based on these considerations, the Court does not find that the privilege has been waived. Accordingly, the subpoena will be quashed.

18a This decision will not prejudice the defendant because clearly Representative Weldon possesses no first hand knowledge of the government’s “Able Danger” program. Anything he knows about the program either came from witnesses with more direct knowledge or the document which he no longer possesses. That document can certainly be subpoenaed from Stephen Hadley, the person to whom Representative Weldon says he gave the document. Moreover, as demonstrated by the government’s Motion to Exclude, the defense has also subpoenaed three witnesses with first-hand knowledge of the “Able Danger” program. These persons can provide much, if not all, of the information that the defense could expect to obtain from Representative Weldon. In its Motion to Exclude, the government argues that the entire “Able Danger” issue is not relevant to this case, and, even if relevant, allowing the defense to raise this issue will cause substantial delay and confuse the jury. The government also forcefully argues that no chart linking Mohammed Atta to Al Qaeda ever emerged from the “Able Danger” program, a contention disputed by the potential witnesses.4 What knowledge the government possessed before September 11 regarding members of Al Qaeda, and specifically links between Al Qaeda and the eventual hijackers, is a key issue in dispute in this death penalty trial. Accordingly, the Court finds that the information to be elicited from the three “Able Danger” witnesses is sufficiently relevant to the case, and that its relevance is not outweighed by considerations of confusion and waste of time.

4 This contention is also disputed by Representative Weldon, who has stated in press reports that he viewed such a chart. See Deft’s Opp. To Rep. Curt Weldon’s Mot. to Quash Subpoena. 19a Therefore, the government’s Motion to Exclude is DENIED. Accordingly, it is hereby ORDERED that the Motion of U.S. Representative Curt Weldon to Quash Subpoena be and is GRANTED, and the subpoena is hereby QUASHED, and it is further ORDERED that the government’s Motion to Exclude be and is DENIED. The Clerk is directed to forward copies of this Order to counsel of record. Entered this 2nd day of March, 2006.

/s/ Leonie M. Brinkema United States District Judge

Alexandria, Virginia 20a ADDENDUM E IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS [Entered 5/15/02] ———— Crim. No. H-02-121 (MH) ———— UNITED STATES OF AMERICA, Plaintiff, v. ARTHUR ANDERSEN, L.L.P., Defendant. ———— ORDER ———— UPON CONSIDERATION of the Motion to Quash Subpoena of the Committee on Energy and Commerce of the U.S. House of Representatives (“Motion”), the Opposition; if any, mzh and the entire record herein, it is by the Court this 14th day of May, 2002 ORDERED That the Motion is granted for all the reasons stated in the Memorandum of Points and Authorities filed in support of the Motion. It is further ORDERED That the subpoena duces tecum directed to the Committee on Energy and Commerce, issued on April 25, 2002, by Defendant, be and hereby is quashed.

/s/ Melinda Harmon Hon. Melinda Harmon United States District Judge